Health Bill - Standing Committee E

[Ann Winterton in the Chair]

Health Bill

Ann Winterton: I welcome members of the Committee on this not-so-fine morning. May I remind everybody to switch off their mobile phones, which can disturb the work of the Committee.

Clause 3 - Exemptions

Amendment proposed [6 December]: No. 35, in page 2, line 40, at end insert—
‘()Regulations made under subsection (1) shall not provide for premises or areas of premises not to be smoke-free if they are premises or areas of premises to which children have access.’.—[Mr. Lansley.]

Question again proposed, That the amendment be made.

Caroline Flint: Lady Winterton, it is a pleasure to serve under you this morning, and one that I do not think that I have had before.
Before we adjourned on Tuesday, the hon. Member for South Cambridgeshire (Mr. Lansley) was explaining why he believed that, within the tightly defined areas that will be exempted from our smoke-free policy, there should be further provision for preventing smoking in areas where there are likely to be children. The reach of our proposals for smoke-free areas in places where children go should not be underestimated. For example, we have said that every shopping mall, café and leisure centre should be smoke free. We can all agree that a lot of families with children are likely to be in such areas. That is a huge step forward in protecting children from smoke. In addition, our proposals cover restaurants and cafés where food is being eaten, whether or not they are licensed.
One development in the past 15 years has been the way in which the pub trade has created more of a family atmosphere by providing food on its premises, and often facilities where younger children can play. That is welcome; it makes the experience a family activity. Our proposals will cover all those places.
So I do not agree with the hon. Member for South Cambridgeshire that somehow the Bill does not cover the needs of children. It tackles the needs of adults who want to work and choose to socialise in smoke-free places and, as a by-product, the very places in which smoking will not be allowed are those to which children are encouraged to go—there are rather more of those than there are licensed premises.

Andrew Murrison: Children tend to be at home rather a lot. Does the Minister agree with the Defence Secretary’s assessment that the measures might, paradoxically, increase the exposure of family members to tobacco smoke, because people will resist the temptation to go to the pub and will instead take their six-packs, drink them in the front room and smoke in front of their children?

Caroline Flint: I looked at the report of the Health Committee’s interview of the former Health Secretary. He was referring to the increase—I think that I mentioned it on Tuesday—in off-licence sales, videos and DVDs. More families are socialising at home in both England and Ireland. He pointed to the importance of recognising that whatever we do in respect of public places, we should never take our eye off the ball in relation to families. The fact is that adults smoke in the home and in the car in front of their children. Although we do not seek to legislate to stop that, we should make every effort to make people aware of the dangers to themselves and to their children of smoking.
Mr. Andrew Lansley (South Cambridgeshire) (Con) rose—

Caroline Flint: My right hon. Friend was also reflecting concerns. Over the past six months a number of hon. Members as well as people outside the House have asked me whether the measures would lead to more smoking in the home. In the past six months new evidence from the Royal College of Physicians and reports based on the Irish experience suggest that such displacement is unlikely, so I am happy to say that there is no direct evidence that the Bill would lead to more smoking in the home. However, we must remember that the trend over the past 10 years has possibly been for more leisure activities and drinking to take place in the home, not only because alcohol is sold in shops and supermarkets as well as on licensed premises, but because, with the advent of DVDs and videos, some families choose to socialise at home. Drink is part of that scene, as, I am afraid, is smoking, and children are sometimes present.

Andrew Lansley: When I sought to intervene, the Minister was saying that parents would be free to continue to smoke in front of their children in private places, but that the changes brought about by the Bill would help children in public places. However, part of the difficulty is that in some areas of the country a large number of establishments would be exempt. I have referred to the report in the British Medical Journal that analysed Telford and the Wrekin and suggested that two thirds of pubs in deprived areas would be exempt. If we took clubs into the equation, 80 per cent. of establishments in deprived areas would be exempt. Therefore, in some areas not only are children likely to be exposed to smoke in the home, but some of the social establishments to which their parents are most likely to go will probably continue to allow smoking. We will not reinforce parents’ understanding of the  damaging effects of smoke on their children unless they are aware that in public places they should not expose their children to second-hand smoke.

Caroline Flint: I am always interested in the contributions of Conservative Front-Bench spokespeople on this issue, because they are quite confusing. As far as I am aware, the hon. Gentleman does not believe that we should be legislating at all at present.

Andrew Lansley: We have been through all that.

Caroline Flint: I am afraid that it is pertinent. On one hand, the hon. Gentleman argues that if the Conservative party were in power its policy would be self-regulation for another three years and then to review the position with a view, possibly, to going as far as we go in the Bill or perhaps further.
Mr. Lansleyrose—

Caroline Flint: Let me finish the point. Conservative policy on this issue is confusing not only for the public but for Conservative Back Benchers. On one hand, the hon. Gentleman is promoting his party’s policy of further self-regulation, and on the other hand he seeks further distinctions within the limited exemptions that we propose. As I have said, it should be acknowledged that the places that will have a total ban are overwhelmingly the sort where children go either with their parents or on their own. Therefore, I have no doubt that, because it reduces exposure to second-hand smoke in public places, children will benefit from the Bill.
However, there are difficulties in creating a further distinction by categorising exempted places. Let me give the hon. Gentleman an example. We want to allow an exemption in adult hospices, but the amendment would mean that a child might not be able to visit a relative or parent in their room, and the patient might be confined to their room because of the nature of their illness. I can think of a number of other scenarios in which that might create a problem for children. The hon. Gentleman has not thought about that and is thinking more about licensed premises. I believe that a further distinction is unnecessary and that the criteria for premises being allowed an exemption are already tight.
Steve Webb (Northavon) (LD) rose—
Mr. Lansleyrose—

Caroline Flint: Parents must make a choice about going to the limited number of public places that are exempted, but we have said that we will review the exemptions within three years. One issue that we can review and evaluate is whether children are disproportionately exposed to second-hand smoke in exempted places, particularly licensed premises.
I will give way to the hon. Member for Northavon (Steve Webb) and then to the hon. Member for South Cambridgeshire.

Steve Webb: I want to offer some evidence in support of the Minister’s position. In Ireland there has been a total ban and the overall prevalence of smoking has dropped markedly, even if there is some displacement of the sort suggested by the hon. Member for Westbury (Dr. Murrison). Some people who would have smoked in the pub are now smoking at home to the detriment of their children, but there has been such a dramatic reduction in the amount of smoking overall that there are now far fewer homes in Ireland where people smoke. That must be good and the Minister may conclude that it would be better to go for a more comprehensive ban.

Caroline Flint: Well, it is always interesting to look at and reflect on what happens in different countries. When places such as California, New York and Norway introduced partial bans, they applied initially to workplaces and public places and were extended to bars last, for some of the reasons I have outlined. I am sure that those places also saw a decrease in smoking.
I am pleased that a substantial number of people have given up smoking in the past few years, and that is due to a combination of better information and better services. Importantly, some of our national campaigns have been run locally to make parents aware of the dangers to their children, and they have been an important factor in persuading people if not to stop smoking at least to choose not to smoke at home. However, there is still a long way to go. A survey earlier this year showed that a huge number of adult family members—parents and so on—smoke in front of their children in cars. There is more work to be done.
I believe strongly that the Bill pushes the balance towards a more smoke-free environment in public places and workplaces. The accusation was made that the Bill says nothing about children, but it is implicit, by the nature of places where there will be a total ban, that children will not be exposed to second-hand smoke in the places they frequent.
Mr. Lansley I am grateful to the Minister for giving way after a while. It seems that whenever I say something that she finds difficult, her reaction is to have a go at the Conservative party. We are not here to debate the Conservative party’s policy; we are here to debate the Bill. However, at the risk of repetition, I tell the Minister again that the Conservative party’s clearly expressed intention before the election was to implement legislative provisions so that smoking in public places to which children have access would not be permitted, but to allow a self-regulatory solution for up to three years. Before the election, the Government expressed their intention to introduce their measures in 2008. We believe that the flexibility and speed inherent in self-regulatory solutions is better then the rigidity and sometimes delay consequent on the production of primary legislation and statutory instruments.
I understand what the Minister says and I acknowledge that I am focused on licensed and club premises, and that the amendment might have unintended effects and not deliver precisely what is  required, but is she saying that she is content that a substantial number of licensed and club premises will be able to admit children to areas where second-hand smoke is present?

Caroline Flint: What I am saying is that the restrictions on exempted places are tight and I do not believe that there is an argument now for further limits in those premises. The justification for exempting private clubs is that adults choose to become members of such clubs. I shall stand corrected if Hansard shows that I am wrong, but I recollect that on Tuesday the hon. Member for Westbury referred to a private club as almost a parallel to a home in the sense of a private space. Private clubs are exempted on the basis that their members are adults who choose to sign up to the regulations of that club. They have a say in the running of the club—by their very nature, qualifying clubs must allow for that—so they have a say in determining whether smoking should be allowed at all or in certain areas. Many clubs already apply rules in that area, including no smoking in bars.
Therefore, while I understand the concern of the hon. Member for South Cambridgeshire about smoking in front of children, I do not think that the right way to proceed is to exempt such areas within the proposed exemptions. I think that our direction of travel is clear, and we have said that we will monitor from day one. I am happy to tell the Committee that one aspect that we can monitor is exposure of children to smoke in licensed premises that will be allowed to continue to have smoking. However, I feel fairly confident in saying that the danger spots for children are the sort of places that we have covered in the Bill with a total ban: restaurants, cafés, shops, shopping malls, leisure centres and other places where children go with their parents or on their own.
There may be occasions when parents take children to licensed premises, but I do not believe that that is as widespread as the hon. Gentleman suggests. I do not know whether he is talking about primary school children or teenage children, but many licensed establishments have their own informal arrangements for access by families and set the tone of the place for families. I would expect that many licensed establishments that will be exempted under the Bill will not be the sort of places to which children are taken at the moment or will be taken in the future.

Andrew Murrison: I would call a hotspot a place where a child spends a great deal of time and could be exposed to second-hand smoke. I do not agree with the Minister that such places tend to be restaurants or shopping malls. They tend predominantly to be their own homes. Does the Minister not understand that it is estimated that every year 17,000 children under the age of five are admitted to hospital as a result of second-hand smoke? Whatever she says and whatever the experience in Ireland, her Bill is likely to expose children to more second-hand smoke.
All my hon. Friend the Member for South Cambridgeshire is trying to do is improve the Bill so that we give a clear message to parents that smoking in front of children of an impressionable age should be limited. Surely the Minister has read Professor Konrad Jamrozik’s research published in the British Medical Journal, which I referred to on Tuesday. It shows overwhelmingly that the ill-effects of second-hand smoke accrue as a result of exposure at home. Surely her focus should be there.

Caroline Flint: I think I have been very clear on this matter. As far as I am aware, there is no direct evidence—that includes the research evidence that the hon. Gentleman refers to—that reducing the number of places that allow smoking leads to an increase of smoking in the home. I said that on Tuesday and I say it again today. There have been two reports in the past six months—one from the Royal College of Physicians—that indicate that that is correct.
Of course smoking in the home is an important matter, and I acknowledge that some individuals have expressed concerns about it. However, as far as I am aware, there is no evidence that banning smoking in hospitals, the workplaces that are listed in the Bill and all social and public settings would lead to more smoking in the home. I acknowledge that changes in lifestyle in the past 20 years have affected how families socialise, drink and enjoy themselves, but that does not necessarily have anything to do with restrictions or bans on smoking in public places. That is just lifestyle and social development. If the hon. Gentleman is suggesting that our proposals will force people to smoke more at home, I would say to him that there is no evidence to back that up.

Andrew Murrison: That is what the Defence Secretary said.

Caroline Flint: No, it is not what the Defence Secretary said. I read what he said in the Health Committee, and I suggest that the hon. Gentleman read it as well. It might help him in his deliberations.
I find it ironic that the hon. Gentleman makes a big case about the dangers of smoking in the home. Some of my colleagues might infer that he seeks to ban smoking in the home, since he makes such huge play of it. I hope that none of us in this Committee are suggesting that we do that. I hope that we all recognise that smoking in front of children in the home or car, or in private places with families, is an important issue, but that we must tackle it in other ways. I do not believe that amendments to make areas in a limited number of licensed establishments smoke-free if children have access to them would contribute to reducing smoking at home—if that is his suggestion. I do not believe that there is sufficient evidence to suggest that restrictions on smoking, in and of themselves, increase smoking in the home.

Nadine Dorries: I would like to bring in an example about children from lower socio-economic groups. A village in my constituency has a British Legion club. It is a private members’ club and will be exempt from the Bill. It  serves food, and children are in the club all day Saturday and Sunday, Christmas, holidays and often in the evenings. The smoke in that club is so dense that it stings one’s eyes when one walks in. The children who are in there tend to be from lower socio-economic groups. Their parents have taken them there because it serves cheaper drinks and food, and there are as many children in there on any Saturday or Sunday as there are adults. If someone were to go into the next pub in the village that serves food—

Ann Winterton: Order. It might be helpful to the Committee if Members were aware that interventions should be relatively short. I have allowed a certain latitude but perhaps this should not be so in future. I know that the hon. Lady is a new Member and is perhaps not aware of it, but if she could make her interventions shorter, that would be very helpful to the Committee.

Nadine Dorries: Sorry, Lady Winterton. I was giving an example of two bars in my constituency. In one there is no ban at the moment, and in that one there would be no children. The point I am trying to make is that, under the Bill, children from lower socio-economic groups will still be exposed to risk.

Caroline Flint: I cannot remember whether the hon. Lady was at the debate earlier in the week on private members’ clubs, but her colleagues were making the case that the question was for individual members of such clubs. The hon. Member for Westbury likened being a member of a private club to being a private resident.
I understand what people are saying about the dangers of second-hand smoke to children, but I do not believe that further restrictions to those covered by the exemptions are the right way forward. We should say to private members’ clubs, which people join knowing the rules, that it is a matter for parents to decide whether they wish their children to partake in activities in that club where their children will be exposed to smoke. That is a decision they make when they join those clubs. The hon. Lady is right: people join those clubs for different reasons, but they join as a private member, knowing the rules of the club and knowing that they can change the rules of the club if they wish. Parents can make a choice about whether they wish their children to be involved in activities in that club, whether it is smoke-free or not.
Private clubs are exempted under the Bill, so it would be illogical to turn the argument on its head by suggesting, “You can be a private club member, decide what you want to do and be exempt, but in this area we don’t agree that you have those rights or individual choice about what you do.” In some ways that would turn on its head the argument of allowing private clubs to be exempt in the first place.
Having said that, many children in some of our most deprived communities can be seen in the sorts of places that will be completely covered by the legislation. Some of the most deprived wards in the country are in my constituency and I see children in the shops and shopping malls of Doncaster, some of the leisure centres that still allow smoking, and in cafés of one sort  or another. There are even still smoking areas in some cinemas. Bearing in mind where children go, either on their own or with parents, the Bill will substantially reduce the number of smoking environments to which children are exposed.
We are committed to reviewing the legislation, and one of the issues we can take into account as part of our evaluation is whether a disproportionate number of children have entered the limited number of bars where smoking will be allowed or whether the risks to those children have increased. In either case, I am not sure that that would happen or whether there would be any evidence for it.

Andrew Murrison: The Minister has made great play throughout the course of the Committee of the fact that it is a question not just of reducing smoking per se, but of sending people messages; it is a matter not just of reducing the amount of second-hand smoke, but of the message that is sent to a society as a whole. Does she not understand that all that my hon. Friend the Member for South Cambridgeshire is trying to do is to send that message about children? Surely she accepts that the amendment would give a clear message that it is simply not acceptable to smoke in front of children.

Caroline Flint: It is right to advise that it is not sensible to smoke in front of children. That is what we try to do through all our campaigns; we know that children are most exposed in the places where families have to make choices. We try to think of ways to reach those families, whether we are dealing with mothers expecting babies, support for giving up smoking, or whatever.
The Bill already sends out a strong message about our refusal to accept that self-regulation is the way forward. We have said that we need to legislate for most of our workplaces and public places, to increase the choice and reduce the exposure for those who do not smoke. I would have hoped that, following the logic of his argument, the hon. Member for Westbury (Dr. Murrison) would support the Bill. As I have said before, the vast majority of places where children go will be subject to a total ban as a result of the Bill.

Jeff Ennis: I welcome you to the Chair, Lady Winterton, and I look forward to serving under your excellent chairmanship. On the subject of protecting children from cigarette smoke, may I say something in response to the hon. Member for Mid-Bedfordshire (Mrs. Dorries)? I used to live in a British Legion club—my dad was the steward—and I can endorse what she said about smoke getting in people’s eyes. I can remember serving behind the bar, and by the end of the evening my eyes were stinging. I had to go outside several times to get my breath and clear my eyes.
This subject is key to the Bill. As the Minister knows, I have tabled new clause 7, to raise the age of sale from 16 to 18—

Ann Winterton: Order. You asked the most fantastically brief question in the House yesterday, Mr. Ennis, and bearing in mind what I said a few moments ago, and the fact that we are not discussing new clause 7, perhaps you could make this intervention very brief too.

Jeff Ennis: Thank you for that guidance, Lady Winterton. The question that I am asking—very briefly—is whether the Minister agrees that new clause 7 is another measure that we ought to try to incorporate and take cognisance of, in terms of the young people—

Ann Winterton: Order. We are not talking about new clause 7, so it is not a matter for debate now.

Caroline Flint: My hon. Friend is making an interesting point about his childhood. My grandparents were publicans, and we probably have some experience in common, as I spent the first years of my life living with them when they were running a public house. Perhaps I should have declared an interest at the outset.
As my hon. Friend and I know, licensed premises are private premises as well, so there are questions about how the amendment might affect publicans, stewards of British Legion clubs and so on, and their children. If a steward or licensee of an exempted licensed premises allowed their child to enter the bar area where people had been smoking, would that be an offence? The question is rather more complicated than hon. Members have suggested.
Opposition Members have said a lot about how to protect children from smoking, and smoking in the home. There are several different measures by which we can protect children better. One is using the law to increase enormously the number of smoke-free places. The second is tobacco control. The third is what we do to persuade families that they should make a choice for health, by not smoking in front of their children in their home or elsewhere.
Tobacco control is important. That is why I am pleased to confirm that next year we shall consult on a proposal to raise the age for the sale of tobacco from 16 to 18. I commend the intervention by my hon. Friend the Member for Barnsley, East and Mexborough (Jeff Ennis), which allowed us to reflect on his proposals and consider how we might take that forward.

Andrew Lansley: I add my welcome to you, Lady Winterton, to the Chair of our Committee. We are pleased to see you here, albeit at the somewhat ungodly hour at which we started.
I shall not propose that we vote on the amendment. The reason is straightforward. It is not because it has not elicited an argument that justifies changing the Bill, because I think it has, but because the Minister made the perfectly reasonable point that, were we to amend it in this way, we would prevent people from smoking in a private space—their home or their temporary home such as a hospice. To be fair to myself, when I moved the amendment on Tuesday  afternoon I said that the structure of the Bill might be such that that would be the case. If the amendment is flawed, I shall not ask the Committee to divide on it.
However, the debate has further illustrated that, when we come to Report, it will be necessary for the Bill to be amended in relation to licensed premises and, perhaps especially, clubs, in view of what my hon. Friend the Member for Mid-Bedfordshire said. If the Government are to allow smoking in pubs that do not serve food, and relatively more children are likely to be found in places where food is served, clubs will secure a substantial commercial advantage against pubs. At the same time, as they are likely to attract families and are entirely free to allow smoking, we will have a serious problem of exposure of children to second-hand smoke.
The Minister chides the Opposition, saying that clubs should be exempt because they are private spaces. We believe that they are extensions of private space. However, adults can decide whether to belong to a club where smoking is permitted. Parents should always be able to make a decision that their children are not exposed to second-hand smoke. Whether or not an adult is a member of a private club, they should be able to expect that their children, wherever they are taken, will not be exposed to second-hand smoke.
We are balancing the rights of parents with the rights of adults in private spaces and the rights of society and individuals not to be exposed to second-hand smoke. We must send strong and consistent messages. The Minister talks bunk, frankly, about whether self-regulation sends a message. It is not only through legislation that we can send a message to people about what they should or should not be doing. If it were, we would simply ban smoking. The Minister’s argument is that we should ban smoking because anything else is ineffective.
The Government, we, everybody is trying to reduce the prevalence of smoking, and, alongside that, to reduce it in front of children. We must send a consistent message, whether through legislation or self-regulation, that, notwithstanding the choices that adults have a right to make, we as a society believe that children should not be exposed to second-hand smoke.

Steve Webb: We have thought about the potential displacement effects of smoking bans. Has the hon. Gentleman thought what the displacement effect of the amendment might be? If clubs can permit smoking only if they do not allow children in, presumably a percentage of clubs will say, “Right, no kids.” What does he think the consequences of that would be?

Andrew Lansley: Clubs may have to be clear about where smoking is permitted in the club and where it is not, and the Bill certainly contemplates that. The position that we are driving towards—it is reflected in the Bill, although we have not reached that point yet—is that premises can have smoking rooms. That is what subsection (4)(b) contemplates. My personal view is that that is precisely what clubs should do. That would not necessarily remove the opportunity for families to continue to go to clubs. If families are going to go clubs that serve food, the Bill should set a framework that  drives clubs to the conclusion that if they allow children into a part of the building, it should not be the part where people smoke.
On that basis, I will not prolong the argument. It has been a useful debate that has shown where amendments should be made to the Bill, but we may not be able to structure the amendments in precisely the form that delivers the intended effect until Report. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

George Young: I beg to move amendment No. 59, in clause 3, page 2, line 40, at end insert—
‘(3A)The appropriate national authority shall certify, following consultation with the Health and Safety Commission and such persons as they consider appropriate, that any regulations made under this section require any person who controls or is concerned in the management of premises covered by such regulations properly to meet their obligations under sections 2 to 6 of the Health and Safety at Work Act etc. 1974 (c. 37).’.

Ann Winterton: With this it will be convenient to discuss the following amendments: No. 47, in clause 3, page 3, line 5, at end insert—
‘(c)in the case of any premises any requirements for the protection of employees and members of the public that shall be specified, forming part of an Approved Code of Practice issued by the Health and Safety Executive.’.
No. 60, in clause 3, page 3, line 11, at end add—
‘(6)The appropriate national authority shall, following consultation with the Health and Safety Commission and such persons as they consider appropriate, set maximum permitted occupational exposure limits to smoke or any constituent part thereof for any premise which would otherwise be smoke-free but permits smoking at any time by virtue of regulations issued under subsection (3).’.
No. 61, in clause 3, page 3, line 11, at end add—
‘(6)No regulations under this section shall be made unless and until smoke emitted as a result of smoking as defined in section 1 has been previously designated as a hazardous substance under the Control of Substances Hazardous to Health Regulations.’.

George Young: Lady Winterton, I, too, welcome you to the Committee as co-pilot on a flight where smoking is permitted as long as no one is eating at the time.
This group of amendments deals with the interface between the Bill and legislation that protects people where they work. I remind Labour Members that the relevant section of their manifesto contained a commitment to protect employees. The Minister said on several occasions on Tuesday that this was not an employment or a health and safety Bill. In the narrow sense, she is right; the Bill is about public health. However, there is inevitably an interface between the exemptions in the Bill, the legislation on health and safety at work and the Control of Substances Hazardous to Health Regulations 2002. An implication flows from the exemptions in the Bill that if one works in a place that is exempt—subject, of course, to the rules about smoking 1 m from the bar—one is okay. The amendments are intended to test that assumption against the protection that all employees have wherever they work.
I will begin with amendment No. 59, which I hope will confront the Government with the contradiction between the exemptions in the clause and the obligations on employers under the Health and Safety at Work, etc. Act 1974. Section 2 of that Act requires an employer
“to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”
Section 3 places a duty on every employer
“to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
That clearly affects customers. Section 4 requires every self-employed person—that could be the landlord—
“to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons ... who may be affected thereby are not ... exposed to risks.”
Section 5 requires the person having control of the premises to
“use the best practicable means for preventing the emission into the atmosphere from the premises of noxious or offensive substances and for rendering harmless and inoffensive such substances as may be so emitted.”
There is a further qualification under section 6 about people who manufacture, import or supply substances.
The legislation sets out some fairly clear parameters about what those who work in premises are entitled to. The custodian of all that, the chair of the Health and Safety Commission, Mr. Bill Callaghan, wrote to the Secretary of State during the consultation period on the Bill calling for the exemptions for pubs and clubs to be dropped. A paper that was approved by the Health and Safety Commission on 27 July, stated that
“The arguments for a wider ban in all licensed premises are these:
the science: SCOTH”—
the Scientific Committee on Tobacco and Health—
“is clear that second hand smoke is harmful. The Government’s proposals appear to be at odds with equality in public health.”
The Health and Safety Commission wrote to the Health Secretary, saying:
“We are concerned that the proposals run the risk of creating health inequality and this we consider would be undesirable.”
There is a clear conflict between the HSC, whose view is that we should not adopt the exemptions under discussion, and the Secretary of State and the Government, who are clear that there should be some exemptions. Amendment No. 59 seeks to address that contradiction.
The Minister must know that this Bill’s attempt to exempt workers and the premises that I have described runs the risk of legal challenge. The state of “guilty knowledge”, which I am sure lawyers understand, although I do not, under the Health and Safety at Work, etc. Act 1974 is now possible in relation to second-hand smoke. We all know that second-hand smoke is dangerous.
Employees made ill by such exposure, even though they may think that they are exempt under this Bill, will have a case for damages against their employer, claiming negligence and citing a breach of the 1974 Act, sections of which I have just read out. The  Minister must confirm that that remains possible for any premises exempted from a general prohibition on smoking under this Bill. It would be helpful if she confirmed that, notwithstanding the Bill, those people are entitled to bring actions against their employer.

David Kidney: I had the same train of thought myself. Those landlords who continue to permit smoking will be at risk of being sued by their employees. However, the one aspect of the 1974 Act that the right hon. Gentleman does not seek to incorporate in his amendment is the section after sections 2 to 6, which says that individuals as workers have responsibilities to know the health and safety policy of their employer and to abide by lawful instruction by their employer. Does he think that that is an omission from his amendment?

George Young: It would be interesting to know whether that was a legitimate defence, were an employee to bring the case that I have just described. My understanding is that it may not. Notwithstanding that, the employer has an overriding obligation not to expose his employees to that risk. I say that, conscious that the hon. Member for Stafford (Mr. Kidney) has a legal qualification, which I am spared.
Amendment No. 60 requires the Government to set a maximum permitted occupational exposure limit on second-hand smoke in exempted premises. In effect, the amendment is saying that the health and safety risk is unavoidable, so the amendment is a fallback position; however, it would require the Government to quantify and justify the risks to which they were exposing workers as a result.
Amendment No. 61 prevents the Government from exempting any premises until second-hand smoke has been listed as a hazardous substance under the COSHH regulations. Second-hand smoke is carcinogenic, and to my mind it should already be listed under COSHH. COSHH requires employers to prevent or adequately control the exposure of their employees and other persons who may be affected by hazardous substances. In addition, the regulations require
“the maintenance, examination and testing of control measures”,
the provision of information and other requirements.
I suspect that when the Minister gets to this amendment, she may find at the head of her brief, “Resist”. I understand that the Department’s position is that the amendment should be resisted on the grounds that the COSHH regulations list dangerous substances only if they are the product of a work process rather than an incidental hazard in the workplace. I understand that that may be where she is coming from. That is wholly illogical.
Let us part for a moment from the provisions in the Bill that ban smoking in public places and look at the COSHH regulations. If, for the sake of argument, I was an employee in a research laboratory that was testing the damage done by second-hand smoking and I went into a room where there was a machine that was smoking and emitting second-hand smoke, I would  have all the protection that flows from COSHH, because the second-hand smoke would be the product of a work process. On the other hand, if I am confronted with exactly the same risk and I go into a room where a real person is smoking—and I do so as an employee of the landlord—although I am exposed to the same risk, I am not covered. That is because the smoke in the second circumstance is deemed to be an incidental hazard in the workplace, whereas in the first it is a direct product of the work process.
Either second-hand smoke is a carcinogen or it is not. Perhaps the Minister will clarify that. If she agrees that it is, perhaps she will agree that the COSHH regulations should list it as a dangerous substance. Those who are exposed to the risks from second-hand smoke would then have the protection that flows from the COSHH regulations.
I hope that the Minister will accept that there is some tension between the objectives of the Bill and the existing protection available to everybody under the Health and Safety at Work, etc. Act 1974 and that she will explain to the Committee how she proposes to navigate her way through these apparently conflicting provisions.

Steve Webb: With the group of the amendments that the right hon. Member for North-West Hampshire (Sir George Young) has just drawn to our attention we also have amendment No. 47, which covers some of the same ground. Like the right hon. Gentleman, I viewed the Bill as being primarily about the health and safety of people in the workplace. Whatever the Minister may say it is about, that should be our primary concern, and clearly things follow logically from that.
I have a great deal of sympathy with the right hon. Gentleman on the amendments. It is an absurd idea in view of all the debate, public discussion and consultation that has taken place over the years that, once there is a partial ban, an employer can legitimately say, “We don’t have a ban on these premises. We are within the scope of the law. I have no idea what harm smoke is doing do to my employees.” Employers are increasingly aware of the damage caused by second-hand smoking, and it seems reasonable to expect members of the Committee to be clear that health and safety legislation implies that, because of everything that we have been through and the bans in other workplaces, employers have a greater responsibility to be aware of what they are doing to their employees and cannot go on in blissful ignorance inflicting the same harm.
I was interested in the intervention by the hon. Member for Stafford. If I understood him correctly—sadly, I am not a lawyer either—there might be an exemption that says “Yes, but workers should know that it is bad for them to breathe in second-hand smoke”. That does not in any way diminish the moral, if not, technically, legal obligation on employers to take effective action. Therefore, I welcome the aim of the amendments to put health and safety at the top of the agenda and write it into the Bill.
I welcome amendment No. 60, which introduces the concept of a maximum permitted limit. All these are second-best solutions that try to make the best of a bad job. The Government have failed to do what they should have done; some people will still be exposed to second-hand smoke. How can we mitigate the effects for as long as we have to put up with it?

Stephen Williams: Will my hon. Friend give way?

Steve Webb: In a second. To require the Government to specify maximum limits seems to me to be a move in the right direction. My hon. Friend might be about to say that anything above zero is unacceptable, but I shall give him the opportunity to do so.

Stephen Williams: Good morning to you, Lady Winterton. Displacement has been referred to several times during our deliberations. Does my hon. Friend accept that if the legislation goes through it is likely that smokers will congregate in greater numbers in exempted pubs? Therefore, the concentration of the smoke in the air in that confined space will increase and the employees in that environment—no non-smoker in their right mind would go to such a place—would be put at greater risk, increasing the likelihood that they would have a viable case against their employer.

Steve Webb: My hon. Friend makes a pertinent point. We may be creating two nations, as it were, of employment in the hospitality sector. One set of people will be completely protected; they will never have to breathe in this stuff again and their lung functions will improve. However, the lives of those in the other sector will be made worse. The partial exemptions have all sorts of side effects.

Andrew Murrison: I take issue with the words used by the hon. Member for Bristol, West (Stephen Williams). I think they were along the lines of “nobody in their right mind would go to such a place”. If the legislation goes through, it is likely that there will be smoking dens in many pubs and in some of the poorer areas of the country the only pubs available will be those that are full of smoke.

Steve Webb: I am not sure that the hon. Gentleman substantively disagrees with my hon. Friend the Member for Bristol, West. We have highlighted the health inequality aspect of the proposals; in some parts of the country—perhaps deprived areas—there are no pubs that serve food. We are saying that where there is a choice under the legislation, there will be a greater concentration of smokers in certain places than there is now.
Amendment No. 47 suggests that if we are going to have these exemptions—we would prefer it if we did not—regulations that might follow for employees or members of the public should come within the scope of an approved code of practice issued by the Health and Safety Executive. I am concerned that the Government are ignoring expert advice about the Bill. We have already heard that they are ignoring the expert advice  of their own chief medical officer, but as the right hon. Member for North-West Hampshire said, they have ignored the advice of the HSE and the Health and Safety Commission. If we are to have these exemptions, the HSE should be involved in drawing up and approving regulations because the exemptions will have an adverse effect on the health and safety of employees at work. That is the thrust of the amendment, which is very much in the spirit of the others with which it has been grouped, and to which we would like to add our support.

Andrew Murrison: There is a great deal of sound good sense in this group of amendments. I am sure that the Minister, being a reasonable person, will want to take them away and consider them. Perhaps she can forge them in a way that the Government would like. I hope that she takes the meaning of them, which is to make it clear that the premises to which we are referring are workplaces. It may be that they are different to industrial workplaces of the sort that the HSE is accustomed to focusing on, but they are workplaces nevertheless.
The Minister will probably say that this is not a piece of health and safety at work legislation and, in the sense of the 1974 Act, that is correct. Nevertheless, the Bill does bear heavily on those at work and everything that the Minister has said during the Committee proceedings and on Second Reading has as its back-stop the fact that workers are exposed to second-hand smoke. Every time we have argued that casual exposure to second-hand smoke is unlikely to have public health implications for individuals who are passing through a public space, the Minister and her colleagues have said, “Ah yes, but what about those who habitually work in those spaces?” It is not reasonable for the Minister to say that other health and safety legislation is not applicable to this matter because the Bill is not a piece of health and safety legislation.
We are trying to improve health right across the board, whether that is the health of members of the public or those who work in public and licensed spaces. Therefore, it is appropriate that we draw on existing legislation that protects workers’ health. For that, we have to draw on the 1974 Act and subsequent regulations. In this case, as my right hon. Friend the Member for North-West Hampshire rightly pointed out, we must draw on the COSHH regulations, with which I am reasonably familiar. It was part of my previous job to ensure that they were followed in a fairly large industrial complex on the south coast of England, so I know what they are about.
It is a fine point to suggest that tobacco smoke should not fall within the scope of the regulations or something similar because they are not by-products of an industrial process. Some 40,000 substances—a vast number—are listed in the COSHH regulations. I know that the Minister will say in a few minutes that tobacco smoke should not be listed or encapsulated in any way in those or similar regulations because it is an unholy concoction of all manner of things. Of course it is  complex. Some 400 substances can reasonably be identified as composite parts of tobacco smoke, but against that we have to set the 40,000 substances that are listed in or governed by the COSHH regulations.
My right hon. Friend gave us a fantastic example in his description of a laboratory in which smoke was generated. The research worker was covered by the COSHH regulations because he was exposed during the process of generating smoke in the laboratory, but the regulations no longer applied when he went into the staff room and was exposed to smoke, even though the insult was precisely the same. It seems illogical, almost arbitrary, to decide that tobacco smoke should be governed by the Bill in one location but not in another part of the building just down the corridor.
This is a huge missed opportunity. The Government simply have not understood that they could happily draw on existing health and safety law, which has stood the test of time for 30 years. It has been amended during that time, most recently in 2002 with the updated regulations. Surely to goodness that legislation should be drawn on if one of the chief aims of the Bill is to protect the health of workers. I underscore that it has been evident throughout the deliberations on the Bill that Ministers rightly regard that as an important—indeed, central—part of the legislation. They have used the protection of employees as the back-stop argument against everything that has been suggested about casual exposure to tobacco smoke and the fact that there is no public health evidence—the evidence base is flimsy—to suggest that trivial or casual exposure to tobacco smoke is injurious to health. Indeed, the Minister may recall my making the distinction between the public health implications of tobacco smoke and the nuisance or amenity implications of it. I suggested that we could legislate for the former, but not for the latter. The argument that comes back every time is that that is all very well for those who are casually exposed, but what about those who are habitually exposed? What about workers?
It is disingenuous for Ministers to say that we cannot deal with this issue under health and safety law or refer to that law and draw principles from it because the Bill is not a health and safety measure. In many respects, it is. Those whom we seek to protect fall within that legislation. It would be interesting to hear to what extent the Minister had examined whether workers were being protected by the 1974 Act and subsequent regulations, and how she explained the failure to reflect that legislation in the Bill so that we could underscore its importance and ensure that employers and organisations gave workers the protection that they needed.
Such protection would be in the interests of the employers themselves. One does not need to be a lawyer to appreciate that there are likely to be many claims in the future from employees who succumb to the common illnesses that sometimes are precipitated by smoking and sometimes are not. Lung cancer is very common, as are coronary heart disease and  strokes. As we know, those diseases are exacerbated or precipitated by tobacco smoke. It is likely that a large number of employees will succumb to them in future. They or their families will make the link between occupational exposure and the condition to which they have fallen victim.

David Kidney: I liked the hon. Gentleman better on Tuesday when he did not recognise my past as a legal practitioner. Today I am a non-practising solicitor. In our debates on Tuesday we talked about the application of the Bill to people’s homes when one room was used for music lessons or accountancy. Does he think that we should introduce the whole panoply of health and safety at work and COSHH regulations to a room in a person’s private home?

Andrew Murrison: The example that the hon. Gentleman gives is of an individual working on his own in his own home. I suspect that he might be even more familiar with the Health and Safety at Work, etc. Act 1974 than I am, but I think that the scope of that Act would not necessarily cover the oboe player or the piano tutor to whom he refers. I am not quite sure that I would want the provisions to apply in this case. The 1974 Act is quite a pragmatic piece of legislation. I would be surprised if an individual working on his own in his own home was covered by the Act in that direct way. If he knows better than me, I will happily take a further intervention. He can confound my case if he wants to.

David Kidney: This is not to undermine him, but the amendment proposes that before any regulations are made, various actions relating to the Health and Safety at Work, etc. Act and COSHH must be taken. Does he think that the amendment applies to people’s homes where they receive members of the public for oboe lessons or to have their books checked?

Andrew Murrison: We are talking about employees. The amendments that my right hon. Friend and the hon. Member for Northavon (Steve Webb) have tabled concern employers. The direct, technical answer to the hon. Gentleman’s question is that, no the amendments do not apply in those cases. If any of those who tabled them want to contradict me, that is fine. They are their amendments. I am merely making observations on them. I hope that I have answered the hon. Gentleman’s point.
I should like to develop my argument about claims that may be made by employees or their families against employers, which is more germane to the debate. My concern as an employer would be that at some point claims would be made against me by employees or their families claiming that I had made insufficient provision to protect their health while they were working for me. It seems appropriate in this Bill to try to reinforce the duties of employers to protect the health of their workers.
Last night I flicked through some of the old legislation relating to health and safety at work. The words are clear. They put a duty on all employers to do whatever they can, so far as is reasonably practicable, to protect the health of their workers. I wonder over all these years whether people who run pub chains have  done all that is reasonably practicable to protect the health of those who work in pubs and clubs. I wonder whether this is a suitable opportunity to underscore that message in a Bill that is geared towards reducing the impact of second-hand smoking.
The opportunity seems to have been missed. There is almost an lacuna in the Bill that cries out for amendments or changes of the sort that my right hon. Friend the Member for North-West Hampshire and the hon. Member for Northavon suggest. I urge the Minister to take the amendments away, have a look at them and then return and tell us why there is no reference in the Bill, which is so geared to protecting the health of workers, to the weft and warp of health and safety legislation and subsequent regulations. As I said on Tuesday and on Second Reading, there is no reference to matters such as occupational exposure standards and maximum exposure limits or their modern equivalent—workplace exposure limits. It would not be rocket science to introduce such standards in the workplaces that we are discussing today. Surely it is technically feasible to insist on workplace exposure limits for places where tobacco smoking continues.
One or two of us spent a few moments 10 days ago in the pub across the road—St. Stephens Tavern looking at its ventilation. I am not necessarily signed up to the notion that there is an engineering solution to the reduction of tobacco smoke levels in every case and certainly there are technical challenges, but in some circumstances ventilation and engineering have a part to play. Yet there has not been a single reference in anything that we have had from Ministers to any engineering or ventilation solutions. In every other industrial setting that I can think of that involves airborne contaminants, there are ventilation and engineering solutions. We must accept that part of the product of the licensed trade is people’s enjoyment and leisure, so tobacco smoke is a by-product, as is undesirable behaviour and the impact of alcohol. Tobacco smoke is a by-product of a process in the same way as by-products from a range of industrial procedures that are directly covered by health and safety legislation.
I find it quite upsetting that the Bill, which we understand is geared to the protection of employees, contains no reference to those normal parameters that apply to the protection of workers elsewhere. The COSHH regulations are a good guide to what might be done and I shall detain the Committee for a moment because it is important for those hon. Members who are not familiar with them to go through the steps required by the regulations, as amended in 2002.
First, one must assess the risks and then decide what precautions are necessary to avoid the risks. One must establish how they might be prevented or how exposure to them might be adequately controlled. One must ensure that control measures are used and maintained. One must monitor exposure and carry out appropriate health surveillance. One must prepare plans and decide what might be done in the event of unforeseen incidents, accidents or emergencies—that  may have less relevance in this context. Finally, one must ensure that employees are properly informed, trained and supervised.
If the average pub went through those steps, I am wondering whether that might constitute pretty good grounds for a defence in the event of a claim by an employee. I suspect that the answer is that it would. Certainly those principles could easily apply to second-hand tobacco smoke in pubs and clubs.
I would go even further than the Minister. She made a great thing about suggesting that we were trying to forestall the legislation by insisting on a voluntary code. The hidden implication behind that is that we are simply trying to kick the whole thing into the long grass. That is what the Minister wants to suggest. In fact—

Caroline Flint: The hon. Gentleman’s words, not mine.

Andrew Murrison: But that is the clear implication of what she has been saying. She may try to bounce those words back to me, but I refute them absolutely—[Interruption.] The Minister sniggers. I am sorry about that; she clearly has not been listening to what I have been saying these last several days. I did not spend 18 years as a doctor in order to try to kill off a Bill that would genuinely improve public health. I take grave exception to the Minister’s suggesting otherwise.
The bottom line is how the Bill will protect public health, and I want to develop my argument about pubs and clubs a little further. There may be grounds for insisting on occupational exposure standards and workplace exposure limits in all those areas that the Government intend to exempt. The Minister will deduce that I would not necessarily be averse to ventilation and engineering solutions in private membership clubs, and the application of the COSHH principles that I have just outlined to those exempt premises. The atmosphere could then be monitored, employees could be properly trained and apprised of what is going on and, where necessary, steps could be taken to control exposure levels if they were deemed to be excessive. That all requires the determination of safe exposure limits but, to date, they have not been determined. There are those who will say, “There are no safe limits”, and that is absolutely true. However, most health and safety legislation accepts that there are risks. The question is defining where that risk may reasonably lie.
We must accept that we are all exposed to ambient toxins of one sort or another. If one were to go around this Room with a detector tube, one would find the by-products of tobacco smoke—I have no doubt about that. To insist that we reduce levels to absolutely zero is puerile in the extreme. The question is how we define what is acceptable. If we do that, and if we can measure it—technically we can—we could then decide how the wherewithal to limit exposure can be put in place, after a proper assessment of risk.
Going through the COSHH regulations last night, it seemed to me that they fit exquisitely the situation that we find in the pubs and clubs that the Minister wishes to exempt. They could be easily used in such places, perhaps with a little adaptation, to protect employees. If the Minister is genuine—I am sure that she is—about the protection of the health of employees, as well as those who are casually exposed to second-hand smoke in restaurants and shopping malls, I hope that she will take a close look at existing health and safety legislation, and see how we can amend it at a later stage in the Bill—perhaps a Government amendment to reflect the amendments that were rightly tabled by my right hon. Friend the Member for North-West Hampshire and the hon. Member for Northavon.

Caroline Flint: We have had an interesting debate. As I said earlier, the vast majority of workplaces and public places will not need to be subject to any of the amendments because, of course, they will be smoke-free. I welcome that.
We have also said that for the licensed premises that are exempt, we will be looking at how we might better protect the area around the bar from smoke. We are still deliberating on that matter; there are a number of options, and we will be producing draft regulations for consultation, which I hope will inform our discussions during the passage of the Bill.

Steve Webb: I think that what the Minister just said was helpful. She said that draft regulations would inform our discussions during the passage of the Bill. She will be aware that this Committee will probably finish talking about smoking some time next week. Presumably she is not talking about producing draft regulations by then, but will it be before the Committee reports to the House?

Caroline Flint: Yes, I am afraid that I cannot confirm that I will be able to do that before this part of the process finishes, but I will come back to the hon. Gentleman with a time line for publishing the regulations.
Nothing in the Bill detracts from current legislation. Perhaps I can give an example of the way in which the Health and Safety at Work, etc. Act 1974 works in relation to smoking. I understand that under existing health and safety legislation a typist received compensation when she was requested to work in a smoke-filled room for an extended period and suffered ill health associated with smoking. She was a non-smoker who had complained to her employer about having to work in a smoking room. I hope that that reassures members of the Committee that current health and safety legislation acts in different ways to protect workers. Now and, I hope, when the Bill has  been enacted, employers remain at risk of prosecution and having to pay compensation if they do not follow the 1974 Act. They could be legally challenged today, and after the summer of 2007. Section 2(1) of the Health and Safety at Work, etc. Act 1974 says:
“It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”
There are some interesting occupational factors in relation to exposure to smoke. I understand the focus on the bar exemption in the Bill, but I want to return to the scenario described by my hon. Friend the Member for Stafford of employees who may be exposed when smoking takes place in a private establishment. The example that I would give is not so much the music teacher working from home as other workers who go into a home to provide a service. Police officers, for example, have to go into people’s homes to take statements or follow up calls for assistance. Home helps go into homes, where they might be exposed to smoking by the people for whom they work. There are many other examples of people, particularly public service workers, being put in that situation. Likewise, we recognise, as hon. Members across the Committee do, that in places such as adult hospices there will be exemptions for staff attending to patients. Therefore, we must bear in mind the places where employees might go and consider how health and safety legislation will apply and how managers, working with staff, will use common sense to reduce exposure.
My problem with the amendments is that they would cause repetition by putting in the Bill law that is already on the statute book. Amendment No. 59 would add a requirement that before regulations are made under the clause employers must meet the obligations laid down in the Health and Safety at Work, etc. Act 1974. I do not believe that that requirement adds anything, as nothing in the Bill undermines employers’ responsibility under health and safety legislation.
Amendment No. 47 would add a requirement that the HSE issue an approved code of practice to protect employees and the public from tobacco smoke in premises where smoking continues. The HSC is responsible for issuing those codes. While it may choose to issue a code, it may determine that an alternative approach is more suitable. Whatever its decision, it would not be appropriate to place a requirement in the Bill.
In 1998, after the “Smoking Kills” White Paper was published—

It being twenty-five minutes past Ten o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at One o’clock.